W. T. Rawleigh Co. v. Warrington

CourtSuperior Court of Delaware
Writing for the CourtHARRINGTON, Judge.
Citation199 A. 666
PartiesW. T. RAWLEIGH CO. v. WARRINGTON et al.
Decision Date14 March 1938
199 A. 666

W. T. RAWLEIGH CO.
v.
WARRINGTON et al.

Superior Court of Delaware. Sussex.

March 14, 1938.


199 A. 666
199 A. 667

Action by the W. T. Rawleigh Company against Stephen Warrington and others for the purchase price of goods sold to the named defendant. On the defendants' demurrer to the declaration.

Demurrer overruled.

HARRINGTON, J., sitting.

Houston Wilson, of Georgetown, for plaintiff. Tunnell & Tunnell, of Georgetown, for defendants.

Superior Court for Sussex County, Action of Assumpsit, No. 37, October Term, 1937.

Case heard on special demurrer to the plaintiff's declaration. That declaration contained four special counts which were based on a contract alleged to have been made by the parties thereto on January 2, 1936. The first and second counts declared on that contract according to its legal effect, but a copy of it was, also, attached to the declaration and made a part of it. The third and fourth counts expressly set out all of the material provisions of the contract of January 2, 1936.

Those provisions and the form of that contract, as well as certain material allegations of the various counts of the declaration, with respect to the simultaneous execution of those parts, covering the obligations assumed by the various parties, and the consideration therefor, will sufficiently appear in the opinion of the court.

In its declaration, the plaintiff company alleged that the defendants were responsible to it for the following sums of money:

1. A balance of $373.97 for goods sold Stephen Warrington, one of the defendants, under a contract prior to the contract dated January 2, 1936, but the payment of which balance was, also, covered by the provisions of the latter contract.

2. A balance of $60.73 for goods sold the said Stephen Warrington under the contract dated January 2, 1936.

The defendants demurred to the plaintiff's declaration alleging that it was bad for a misjoinder of separate and distinct contracts.

HARRINGTON, Judge, delivering the opinion of the Court:

The question raised by the demurrer is whether, under the facts alleged, Clarence E. Abbott and Robert H. Swain can be joined as defendants in an action against Stephen Warrington on the contract executed by him and declared on by the plaintiff.

The answer to that question largely depends on whether, under their contract, Abbott and Swain are sureties for Warrington, or merely guarantors of the obligations assumed by him.

The defendants, also, claim, however, that in any aspect of the case the contract with the plaintiff, signed by Abbott and Swain, is separate and distinct from the contract with that company, signed by Warrington, and that they, therefore, cannot be sued jointly with him.

According to the ordinary meaning of that term, a surety is a person "who binds himself for the payment of a sum of money, or for the performance of something else for another, who is already bound for the same". 2 Bouv.Law Diet., Rawle's 3d Rev., 3191; 50 C.J. 13, 16.

A suretyship is "an undertaking to answer for the debt, default or miscarriage

199 A. 668

of another, by which the surety becomes bound as the principal or original debtor is bound." 2 Bouv.Law Diet., Rawle's 3d Rev., 3192; see, also, Pingrey on Suretyship and Guaranty, § 4.

As a general rule, it is, therefore, essential to the existence of a suretyship that there be a principal debtor or obligor, and a valid and subsisting debt or obligation, for which the principal is responsible.1 Bernd v. Lynes, 71 Conn. 733, 43 A. 189; Rising v. Andrews, 66 Conn. 58, 33 A. 585, 50 Am.St.Rep. 75; 2 Bouv.Law Diet., Rawle's 3d Rev., 3192; 21 R.C.L. 946; 50 C.J. 16.

But while the contract of a surety is, in a sense, accessory or collateral to a valid principal obligation contracted by another person, either contemporaneously or previously, his obligation to the creditor or promise of the principal is direct, primary and absolute, and is, in no sense, conditional on the failure of the principal to pay his debt, or perform his contract, or on notice of such non-performance. Bernd v. Lynes, 71 Conn. 733, 43 A. 189; Northern State Bank v. Bellamy, 19 N.D. 509, 125 N.W. 888, 31 L.R.A.,N.S., 149; Pingrey on Sur. & Guar., § 4; 1 Bouv.Law Diet., Rawle's 3d Rev., 1386; 2 Bouv.Law Diet., Rawle's 3d Rev., 3192; 21 R.C.L. 946; 50 C.J. 74.

As was aptly and concisely said in Pingrey on Suretyship and Guaranty, § 4, p. 9, "The contract of a guarantor is collateral and secondary; that of the surety is direct; the guarantor contracts to pay, if, by the use of due diligence, the debt cannot be made out of the principal debtor, while the surety undertakes directly for the payment, and is so responsible at once if the principal debtor makes default."

Perhaps in most cases, a surety is a co-obligor or a co-promisor in a joint or joint and several obligation, along with the principal debtor, and is, therefore, bound with him by the same instrument, executed at the same time, and on the same consideration. Northern State Bank v. Bellamy, 19 N.D. 509, 125 N.W. 888, 31 L.R.A.,N.S., 149; Pingrey on Sur. & Guar., § 2; 1 Bouv. Law Diet., Rawle's 3d Rev., 1386; 21 R.C.L. 946.

Where that relation exists, in the absence of some limiting clause in the contract, there is a precise identity of obligation on the part of both the principal and the surety, but this docs not mean that they must be bound by the same instrument, or even by the same consideration. Westinghouse Electric & Mfg. Co. v. Wilson, 63 Pa. Super. 294; 21 R.C.L. 947; 50 C.J. 24, 26.

The sufficiency of the consideration to support the contract made by Abbott and Swain is not questioned, but perhaps I might state that, at least, when the instrument, which is claimed to create the relation of principal and surety, is not under seal, and is executed subsequent to and separate and apart from the contract of the principal debtor, like other contracts, a good and sufficient consideration is essential to its validity (50 C.J. 46, 49); and such consideration must usually be executory in character. Edwards v. Jevons, 137 Eng. Reprint 579; 50 C.J. 49. When, however, the suretyship contract, though not under seal, is made at the same time as the principal contract, and both contracts form parts of the same transaction, there need not be any consideration other...

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